A divorced woman has adequately pleaded a legal malpractice claim against the matrimonial attorney who, she argues, did not zealously fight for her interests because of an “understanding” reached between the lawyer and her husband—a charge the attorney denies.
Supreme Court Justice Joel Asarch in Nassau County (See Profile) let Lisa Blumencranz proceed with a legal malpractice claim, denying a pre-discovery dismissal motion from her former attorney, Allan Botter of Galasso, Langione, Catterson & LoFrumento in Garden City.
Blumencranz maintained her then-husband, Eric, told her to choose one of two attorneys he presented to her if she wanted their divorce to go “smoothly.” Botter was one of them.
Mr. Blumencranz told his wife she could pick another attorney but warned it would mean “greater difficulty for her,” she claimed.
Ms. Blumencranz retained Botter in June 2010. Her complaint says prior to the attorney’s retention “an understanding was reached for [Botter] to be paid directly” by Mr. Blumencranz.
As a result of the alleged arrangement, Botter gave Ms. Blumencranz “wholly unprofessional, inadequate and detrimental representation,” she asserted in subsequent court papers, saying that but for Botter’s mishandling, she would have received larger maintenance and equitable distribution awards.
For example, Ms. Blumencranz said Botter did not get independent appraisals of assets, including her jewelry, the husband’s rare pen collection, the marital residence and household furnishings.
Ms. Blumencranz also said Botter did not value the husband’s “expensive gun collection” when determining marital property. Nor did Botter press the husband to support an alleged separate property claim for a “substantial portion” of the down payment on their house, said the complaint.
Botter also allegedly “belittled and demeaned” Ms. Blumencranz, making her cry at every meeting.
A divorce settlement provision allegedly gave the couple joint custody, but final say on decisions regarding their three children was granted to the husband.
Botter allegedly refused to try changing the provision, telling the wife to “try to get along” and to “live with it.”
Ms. Blumencranz’s suit asserted claims for legal malpractice, breach of contract and both intentional and negligent infliction of emotional distress.
She pressed for more than $4 million in damages.
Asarch wrote in Blumencranz v. Botter, 15489/11, that Ms. Blumencranz “adequately states a cause of action for legal malpractice.”
Asarch noted her claims that Botter failed to obtain independent appraisals and overlooked the valuation of certain assets.
“Plaintiff will have to prove the value of the items she now impliedly claims were undervalued at trial in order to succeed in showing malpractice; however, such evidence need not be presented on a motion to dismiss pleadings. Whether plaintiff can ultimately establish her allegations ‘is not part of the calculus’ at the pleading stage,” the judge said.
Nevertheless, Asarch rejected the breach of contract claim as “duplicative” of the malpractice contention.
He also discarded Ms. Blumencranz’s assertions about the infliction of emotional distress.
“The alleged conduct, while utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law,” the judge wrote.
The next court date on the matter is scheduled for Sept. 12.
In an interview, Botter called the lawsuit’s allegations “totally false” and “totally unfounded,” noting how he had been practicing law for more than 50 years and this was the first litigation brought against him in that time.
Botter, a longtime fellow of the American Academy of Matrimonial Lawyers and past vice-president of the New York chapter, called Asarch’s dismissal of the other claims against him “entirely appropriate” whereas the malpractice claim was “factual in nature and couldn’t be dismissed.”
“Her case was settled for sums of money which are extremely substantial,” said Botter. “Her ingratitude is unbelievable.”
Botter is represented by Robert Bergson of Abrams Garfinkel Margolis Bergson.
Ms. Blumencranz is represented by Daniel Frisa, a Manhasset solo practitioner.
“Ms. Blumencranz is pleased that her case will go forward,” he said.
@|Andrew Keshner can be contacted at email@example.com.